Citation Nr: 9920311
Decision Date: 07/23/99 Archive Date: 07/28/99
DOCKET NO. 97-23 494A ) DATE
)
)
Received from the
Department of Veterans Affairs Regional Office in
Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an increased rating for posttraumatic stress
disorder (PTSD), currently evaluated as 30 percent disabling.
ATTORNEY FOR THE BOARD
D. Jeffers, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to February
1971.
This case previously came to the Board of Veterans' Appeals
(Board) on appeal from a May 1997 rating decision of the San
Juan, Puerto Rico, Department of Veterans Affairs (VA),
Regional Office (RO), which denied the veteran's claim of
entitlement to a disability rating in excess of 10 percent
for PTSD. Parenthetically, it is noted that on November 7,
1996, various amendments became effective as to sections of
the VA Schedule for Rating Disabilities pertaining to Mental
Disorders. The veteran was informed of these new regulations
in both the May 1997 rating decision and the July 1997
statement of the case.
The Board remanded this case to the San Juan VARO for
additional evidentiary development in November 1997. During
the pendency of this remand, the veteran requested that his
claim folder be transferred to the Philadelphia, Pennsylvania
VARO inasmuch as he now resides in that jurisdiction.
Following compliance, the Philadelphia VARO granted an
increased rating to 30 percent for PTSD by rating decision
and supplemental statement of the case issued in April 1999.
As this increase represents less than the maximum available
rating, the veteran's claim remains in appellate status. See
AB v. Brown, 6 Vet. App. 35, 38 (1993).
FINDINGS OF FACT
1. The veteran's PTSD, as shown by most recent VA
examination, is "definite" in nature, and is primarily
manifested by mild difficulty in relating to co-workers and
peers because of depression, productive of a Global
Assessment of Functioning (GAF) score of 60.
2. The veteran's current unemployability status has been
etiologically related to an intercurrent nonservice-connected
mental disorder.
CONCLUSION OF LAW
The schedular criteria for a disability rating in excess of
30 percent for PTSD are not met. 38 U.S.C.A. §§ 1155,
5107(a) (West 1991); 38 C.F.R. Part 4, including
§§ 4.1, 4.7, 4.129, 4,130, Diagnostic Code 9411 (1996),
Diagnostic Code 9411 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim of entitlement to a disability evaluation
in excess of 30 percent for PTSD, is well grounded within the
meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he
has presented a claim which is plausible. Generally, a claim
for an increased evaluation is considered to be well
grounded. A claim that a condition has become more severe is
well grounded where the condition was previously service-
connected and rated, and the claimant subsequently asserts
that a higher rating is justified due to an increase in
severity since the original rating. Proscelle v. Derwinski,
2 Vet. App. 629, 632 (1992).
VA also has a duty to acknowledge and consider all
regulations which are potentially applicable based upon the
assertions and issues raised in the record and to explain the
reasons used to support the conclusion. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). These regulations
include, but are not limited to, 38 C.F.R.
§ 4.1 (1998), that requires that each disability be viewed in
relation to its history and that there be an emphasis placed
upon the limitation of activity imposed by the disabling
condition, and 38 C.F.R. § 4.2 (1998) which requires that
medical reports be interpreted in light of the whole recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work. 38
C.F.R. § 4.10 (1998) states that, in cases of functional
impairment, evaluations are to be based upon lack of
usefulness, and medical examiners must furnish, in addition
to etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical classification,
full description of the effects of the disability upon a
person's ordinary activity. These requirements for the
evaluation of the complete medical history of the claimant's
condition operate to protect claimants against adverse
decision based upon a single, incomplete or inaccurate report
and to enable VA to make a more precise evaluation of the
disability level and any changes in the condition.
Where entitlement to compensation has been already
established and an increase in disability is at issue, the
present level of disability is of primary concern. Francisco
v. Brown, 7 Vet. App. 55 (1994). In the instant case, the
veteran's PTSD is currently rated as 30 percent disabling
from May 13, 1996 (the date of his claim for increase).
Effective November 7, 1996, 38 C.F.R. § 4.126(a) provides
that in evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination.
Significantly, however, as the veteran had a claim pending at
the time of the regulatory change on November 7, 1996, the
Board must consider the regulations which were in effect
prior to November 7, 1996. Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991).
In this regard, the regulation in effect prior to November 7,
1996, provided for a 30 percent rating when there was a
definite inability to establish and maintain effective and
wholesome relationships with people; the psychoneurotic
symptoms result in reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. A 50 percent rating required that the
ability to establish and maintain effective or favorable
relationships with people be considerably impaired; by reason
of psychoneurotic symptoms the reliability, flexibility and
efficiency levels as to produce considerable industrial
impairment. A 70 percent evaluation required that the
ability to establish and maintain effective or favorable
relationships with people be severely impaired; the
psychoneurotic symptoms must be of such severity and
persistence that there is severe impairment of the ability to
obtain work or retain employment. A 100 percent evaluation
required that the attitudes of contact except the most
intimate are so adversely affected as to result in virtual
isolation in the community. There must be totally
incapacitating psychoneurotic symptoms bordering on gross
repudiation of reality with disturbed thought and behavioral
processes associated with almost all daily activities such as
fantasy, confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior. The
veteran must be demonstrably unable to obtain or retain
employment. 38 C.F.R. Part 4, Diagnostic Code 9411 (1996).
Under the applicable criteria, a 30 percent evaluation is
required when occupational and social impairment with
occasional decrease in work efficiency and intermittent
periods of inability to perform occupational tasks (although
generally functioning satisfactorily, with routine behavior,
self-care, and conversation normal), due to such symptoms as:
depressed mood, anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep impairment, mild memory
loss (such as forgetting names, directions, recent events).
A 50 percent evaluation is required when occupational and
social impairment with reduced reliability and productivity
due to such symptoms as: flattened affect; circumstantial,
circumlocutory, or stereotyped speech; panic attacks more
than once a week; difficulty in understanding complex
commands; impairment of short-and long-term memory (e.g.,
retention of only highly learned material, forgetting to
complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships. A 70 percent rating is required when there is
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near- continuous panic or depression affecting
the ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. A 100 percent rating is
required when there is total occupational and social
impairment, due to such symptoms as: gross impairment in
thought processes or communication; persistent delusions or
hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living (including maintenance of
minimal personal hygiene); disorientation to time or place;
memory loss for names of close relatives, own occupation, or
own name. 38 C.F.R. Part 4, Diagnostic Code 9411 (1998).
In Hood v. Brown, 4 Vet. App. 301 (1993), the United States
Court of Appeals for Veterans Claims (known as the United
States Court of Veterans Appeals prior to March 1, 1999)
(Court) stated that the term "definite" in 38 C.F.R. §
4.132 is "qualitative" in character, whereas the other
terms were "quantitative" in character, and invited the
Board to construe the term "definite" in a manner that
would quantify the degree of impairment. The General Counsel
of VA has concluded that the term "definite" is to be
construed as "distinct, unambiguous, and moderately large in
degree." It represents a degree of social and industrial
inadaptability that is "more than moderate but less than
rather large." VA O.G.C.Prec. Op. No. 9-93 (Nov. 9, 1993).
The Board is bound by this interpretation of the term
"definite." 38 U.S.C.A. § 7104(c) (West 1991).
Pursuant to the Board's remand order, the RO obtained copies
of the veteran's medical reports from the Social Security
Administration (SSA). These records show that the veteran is
in receipt of SSA disability benefits due to peripheral
vascular (arterial) disease.
VA treatment records, to include hospital summaries,
developed between 1993 and 1998 show treatment on occasion
for anxiety, PTSD and polysubstance abuse.
The veteran was also afforded a VA examination for
compensation and pension (C&P) purposes in March 1999. At
that time, it was noted that the veteran stated that
continues to have re-experiencing phenomenon from his
traumatic events in Vietnam, which include nightmares. These
occur once or twice a month. It was indicated that he had
intrusive thoughts nearly every day about his experiences in
Vietnam, and he becomes "a little anxious" around reminders
of his experiences in Vietnam. The examiner noted that his
avoidance symptoms included avoiding driving, fighting, and
violence in general. The veteran also avoided thinking or
talking about Vietnam as much as he can. He has some
emotional numbing, a sense of a foreshortened future and a
flattened affect. His hyper-arousal symptoms included an
increased startle response and poor sleep; the veteran has
taken Trazadone for sleep in the past. He had occasional
angry outbursts that were hardly frequent. He had some
physiologic response to reminders and poor daytime
concentration. In addition to his PTSD symptoms, he had a
history of opiate and cocaine dependence. However, since
February 18, 1999, he has been clean from heroin and cocaine.
He stated that he was able to work full-time from 1969 to
1987, even though he used heroin. The veteran further
related that in 1987, his psychiatric symptoms became
significantly worse. This occurred in response to a back
accident which caused him significant low back pain. He has
not been able to work since that time. This caused the
veteran to become depressed which, in turn, lead to an
increased to heroin use to the point where it was out of
control and cause significant disability.
On mental status examination, the veteran presented as
disheveled. The examiner noted that the veteran's speech was
normal in tone, volume and rate. He was calm and cooperative
throughout the interview. His mood was depressed, and his
affect was restricted. His thought process was logical and
goal-directed. His thought content revealed transient
auditory hallucinations. He had no paranoid delusions,
current active suicidal or homicidal ideations. His judgment
and insight were noted to be fair to poor, and his cognitive
examination was noted to be mildly impaired. He scored 28/30
on the Mini Mental Status examination. The Axis I diagnoses
were noted to be PTSD, major depressive disorder (this is not
considered to be secondary to PTSD), as well as cocaine and
heroin dependence in early remission. A GAF score of 60 was
noted for PTSD. The examiner commented that the veteran only
had mild symptoms from PTSD and, until his back injury and
subsequent major depressive disorder, he was able to function
in a full-time job despite having symptoms of PTSD. The
veteran himself stated that it was the accident and
subsequent depression, as well as increasing drug use, which
caused the bulk of his disability. A GAF score of 35 was
noted for his major depressive disorder. It was further
noted that the veteran's major depressive disorder has
impacted significantly on his ability to earn a living.
Indeed, his inability to concentrate, his decrease in
motivation and his inability to sleep have caused him to be
essentially unemployable at this time. The examiner
concluded the examination report by reaffirming that the bulk
of the veteran's disability stems from major depression,
which is more secondary to his chronic low back pain and
injury in 1987 than his symptoms of PTSD.
When all the evidence is assembled, the Board is then
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether the preponderance of
the evidence is against the claim, in which case the claim is
denied. See 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R.
§ 3.102 (1997); and Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990). After a contemporaneous review of the evidence of
record, the Board finds that assignment of a disability
rating in excess of 30 percent for PTSD, under either the
"old" or "new" applicable regulations, is not warranted.
The objective evidence clearly reveals that the veteran
manifests no more than a definite occupational and social
impairment such as to cause an occasional decrease in work
efficiency and intermittent period of inability to perform
occupational tasks. Consequently, the Board is satisfied,
having reviewed the entire record to include the most recent
VA examination, that the veteran's PTSD does not produce such
a reduction in reliability, flexibility and efficiency levels
as to produce considerable industrial impairment or
difficulty in establishing and maintaining effective work and
social relationships. Although the examiner was able to
delineate that the veteran still manifests some mild symptoms
of PTSD, it is clear that the veteran's predominant mental
disorder, and the primary cause of his present
unemployability, is his intercurrent major depressive
disorder. Clearly, a schedular evaluation in excess of 30
percent is not justified based on these current medical
findings. See Francisco, 7 Vet. App. at 58 (1994).
In summary, it is the finding of the Board that the criteria
for an increased disability rating for PTSD, both prior to
and after the regulatory change on November 7, 1996, have not
been met.
Moreover, application of the extraschedular provisions is
also not warranted in this case. 38 C.F.R. § 3.321(b)
(1998). There is no objective evidence that the veteran's
PTSD presents such an exceptional or unusual disability
picture, with such factors as marked interference with
employment or frequent periods of hospitalization, as to
render impractical the application of the regular schedular
standards. Rather, a review of the file indicates that his
intercurrent major depressive disorder with increased
polysubstance abuse have caused the bulk of his psychiatric
disability and interference with employment. Hence, referral
by the RO to the Chief Benefits Director of VA's Compensation
and Pension Service under the above-cited regulation, was not
required. See Bagwell v. Brown, 9 Vet. App. 337 (1996).
ORDER
An increased rating for PTSD is denied.
A. BRYANT
Member, Board of Veterans' Appeals